Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
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% Decided on: 17 March, 2017
+ CRL.A. 1113/2016
STATE (NCT OF DELHI) ..... Appellant
Represented by: Ms. Rajni Gupta, APP for the
State.
versus
RAMAN KUMAR ..... Respondent
Represented by: Mr. Tarun Khanna and Ms.
Saahila Lamba, Advocates.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J. (ORAL)
1. The respondent was tried for offences punishable under Sections
366/342 IPC and Section 6 of the Protection of Children from Sexual
Offence Act, 2012 (in short ‘POCSO Act’) and acquitted vide impugned
st
judgment dated 21 November, 2014. Hence the present appeal by the State
after leave to appeal was granted.
2. In her deposition before the Court the child victim PW-1 stated:
“On 13.01.2013 again said 23.01.2013, I was going alone at
around 5.00 p.m. to my maternal grandmother’s house, which
is at the distance of two streets away from my house. Accused
met me at the corner of the street. My father was not at home
on that day and he was on his duty. Accused told me that he
will take me to my father. Thereafter accused took me to his
house. No one was present at the house of accused. At the
house accused told me that he had taken a photograph of my
mother while she was taking bath. Accused kept me at his
house for two days and thereafter he left me in Shukra Bazar.
Accused told me while leaving me at Shukra Bazar that this
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fact should not be told to the police, otherwise, he will again
kidnap me. From Shukra Bazar, I came to my house with some
unknown person and told the entire facts to my parents. My
father called the police. Police took me to DDU hospital,
where I was medically examined.
When I was in the captivity of the accused, he used to talk
to me in filthy language and had also touched my private part
(SUSU). The accused had also made me suck his organ used
for urination. All these facts were told by me to the police
uncle.
My statement was recorded before the Ld. Magistrate.
At this stage, one envelop with the seal of RS is taken out
from judicial file. After breaking the seal, proceedings U/s 164
Cr.P.C. is taken out. Same is shown to the child victim. Child
victim correctly identified her signature on her statement at
point A and proceedings U/s 164 Cr.P.C. is now Ex.PW-1/A.
At this stage the child victim has been asked to identify
the accused, who kidnapped her (The accused is standing
behind a curtain and is unable to see the child victim and he
has been further asked to close his eyes. However, child victim
has been asked to identify the accused from the parting
between the curtain).
After seeing the accused through the parting between the
curtain, child victim has correctly identified the accused
present behind the curtain.”
3. FIR No. 47/2013 under Section 363 IPC was lodged at PS Dabri,
Delhi on the complaint of the father when the child victim was found
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missing since 6.30 PM on 23 January, 2013. Despite search being made
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the child victim was not traceable. On 25 February, 2013 at 2.30 PM the
complainant received a call from his wife stating that the child victim had
returned home, whereafter she was taken to police station and for medical
examination. No statement of the prosecutrix/child victim was recorded
immediately. The respondent was arrested in another case where he stated to
CRL.A. 1113/2016 Page 2 of 7
have allegedly made disclosure statement in respect of the present case.
Thus he was produced before the Court and an application was made for test
identification parade which the respondent refused stating that he had been
taken at various places and shown to number of persons. It is only after the
arrest of the respondent and his alleged disclosure statement that the
statement of the prosecutrix was recorded under Section 161 Cr.P.C. and 164
Cr.P.C. for the first time though she returned home within two days of her
missing from her house. Though the father says that the prosecutrix returned
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on 25 February, 2013 however, as per the prosecutrix she came back on 26
January, 2013 at 2.00 PM on her own and nobody met her on the way. She
knew the location of her house and though she met her family members, she
did not disclose them anything but disclosed the fact only for the first time to
the police uncle. As noted above the statement of the victim was recorded
after nearly two months of the incident after the respondent was arrested in
the other case. In her cross-examination the victim admitted that whatever
she deposed was as told to her by the police uncle. In her cross-examination
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she further stated that she was at her house with her parents prior to 25
January, 2013 and nothing had happened to her.
4. The reasoning of the learned Trial Court in acquitting the respondent
is noted as under:
“36. In the present case, the reliability and credibility of PW1
Child victim has been shaken in the light of her cross
examination wherein she has admitted that whatever she
has deposed before this court in her examination in chief
including the identification of accused, was done at the
instance of police officials meaning thereby that she was
a tutored witness. In the light of PW1 Child victim being a
witness, who was tutored by police prior to her evidence,
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her credibility is shaken and it is not safe to rely upon her
testimony.
37. Further, there are inconsistencies in evidence of child
victim. In her examination in chief, child victim has
deposed that accused met her at the corner of the street
when she was going to her maternal grandmother's home
on 23.01.2013. However, in the testimony of PW2 Father
of child victim, it has come on record that mother of child
victim had apprised PW2 Father of child victim that child
victim had gone missing when she was playing outside
her house. Even in the cross examination, child victim has
admitted that she was playing outside her house with her
sister and two other kids and her mother was inside the
house. Therefore, evidence of child victim that she was
going to her grandmother's house when accused had met
her at the corner of the street, is not believable which also
makes the testimony of child victim unreliable.
38. Secondly, it is not believable that accused will take away
the child victim while she was playing with her sister and
two other children and her sister will not apprise the
mother of child victim, who was in the house. This fact
also makes the evidence of child victim unreliable and
untrustworthy.
39. Further, it has come in the cross examination of child
victim that she was being taken away by accused from the
street on foot and lot of shops were on the way and
shopkeepers were also known to her. However, she did
not raise any alarm to any of the shopkeepers that she
was forcibly being taken by accused. This unnatural
conduct of PW1 Child victim also makes her evidence
unreliable and untrustworthy as no child on being taken
forcibly by some unknown person, will not raise alarm or
apprise the neighbours, who are known to her to seek
their help
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40. It has also come in the cross examination of child victim
that she stayed at the house of accused for two days and
during her stay, she used to play with kids of
neighbourhood and used to talk with neighbours and
accused also used to take her to a hotel for food. Even
then she did not apprise any of the neighbours or children
that she was forcibly kept by accused in his house.
Although child victim had volunteered by stating that
accused had threatened her to prick her with a needle if
she would disclose this fact but that was an improvement
made by child victim as in the statement made before the
Ld. Magistrate u/s 164 Cr.P.C. Ex.PW1/A, no such fact
was deposed. It is not believable that the child victim who
has been taken forcibly against her wishes to the house of
accused will not apprise the kids or neighbours regarding
her plight. This fact also makes the testimony of child
victim unreliable.
41. Further, in the present case, evidence of child victim
could have been corroborated by independent witnesses,
who had witnessed her captivity in the house of accused.
Since it has come in the evidence of child victim that she
used to play with the children in the neighbourhood of
accused's house and used to talk to neighbours and one
aunt as per her statement u.s 164 Cr.P.C.Ex.PW1/A,
therefore, it was incumbent upon the IO to have examined
the neighbours of accused and children residing in the
vicinity of accused's house to lend credence to the version
of child victim. However, despite availability of witnesses,
they were not examined by the IO for the reasons best
known to him which also creates a doubt in the
prosecution story. No efforts were made by IO during the
course of investigation to have taken the child victim to
the house of accused and to identify neighbours and
children, who had seen child victim in the company of
accused. Even child victim was not taken to the hotel
where it is alleged that she had been taken by accused for
the purpose of meal. When evidence is available and is
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not collected then it creates a doubt regarding the
prosecution case, benefit of which has to go to accused.
42. In the present case, offence had taken place on
23.01.2013 whereas accused was arrested in this case on
13.03.2013. After the arrest of accused, he was produced
before the Ld. Magistrate for his TIP proceedings but he
had refused to participate in the same as per Ex.PW4/D.
The reason for refusal given by accused vide Ex.PW4/D
was that he had already been shown to the child victim by
police.
43. The defence of accused regarding nonparticipation in TIP
proceedings stands duly proved by evidence of PW2
Father of child victim, who has deposed in his
examination in chief that after about one month of the
incident, he was summoned by the police officials of PS
Dabri alongwith child victim to identify accused, who was
already in the police custody and thereafter, accused was
identified.
44. From the testimony of PW2 Father of child victim, it has
come on record that accused was already shown to the
child victim in the police station and, therefore, refusal of
TIP by accused vide Ex.PW4/D does not raise any kind of
adverse inference against him as his defence that he was
already shown to the witness, duly stands established.
45. Further, since it has come in the evidence of PW1 Child
victim that she has deposed in this case whatever she was
tutored by police officials, therefore, possibility of
accused being wrongly identified in the court, cannot be
ruled out.
46. Although there is presumption under section 30 and 31 of
the POCSO Act regarding the fact that accused had
indeed committed offence in question but said
presumption is rebuttable.
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47. In the present case, since it has come on record that child
victim is a tutored witness and the identification of
accused at the police station and in the court is also
doubtful and having regard to the fact that even testimony
of child victim is not reliable and trustworthy and
evidence of child victim has not been duly corroborated,
by non-examination of material witnesses i.e. neighbours
and kids in the neighbourhood of accused, who were
available, therefore, in these facts, presumption stands
rebutted by accused and it will not be safe to rely upon
the testimony of child victim. Accordingly, accused is
acquitted for the offence u/s 366/342 IPC and u/s 6
POCSO Act. Personal bond/surety bond, if any of
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accused is discharged
5. From the evidence on record as noted above, the reasoning of the
learned Trial Court in acquitting the respondent for the charges as noted
above cannot be held to be perverse warranting interference. Consequently
the appeal is dismissed.
(MUKTA GUPTA)
JUDGE
MARCH 17, 2017
vn’
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